I dissent.
I concur with the conclusions of the majority opinion that the information herein states facts sufficient to constitute a public offense; that the same was properly triable in the superior court of Sacramento County, and that the evidence is legally sufficient to sustain the verdict of conviction. But I do not think that any error was committed at the trial to the substantial prejudice of the defendant. The opinion evidence offered by the defendant to prove that the cost of producing quicksilver front high-grade ore was relatively less than in the case of low-grade ore was, in my opinion, properly excluded, because the witness was not shown to have had any special knowledge or experience in the treatment of the two grades of ore. Moreover, assuming that this ruling was erroneous I do not think that it could have prejudiced the defendant, because any intelligent juror would reason that if the cost of producing quicksilver was $3 per ton of ore, the relative cost of production would be less in the case of high-grade ore which produces more quicksilver per ton, and the same reasoning would apply equally to any other assumed figure as the cost per ton of ore. I do not think that the trial court erred in admitting in evidence, over the objection of the defendant, the minutes of the organization meeting of the Alpha Quicksilver Company, or the report made by the defendant while in charge of the mine as receiver, or the testimony of the witness who examined the mine in 1919. It was defendant's contention at the trial that he did not mean what he said in a portion of the statement which was charged in the information to be false, and that the falsity of that portion of his statement was solely the product of a typographical error made by the stenographer. The three items of testimony which the majority opinion holds were erroneously admitted had a legitimate tendency to contradict and rebut this claim of defendant, *Page 243 in that they tended to show that other statements made by the defendant in the same application were also false and must have been known by the defendant to be false when he made them.
I agree with the majority opinion that the trial judge should have refrained scrupulously from the making of any suggestion to the jurors as to the weight of the evidence or credibility of a witness, either by commenting thereon in the presence of the jury, or by the manner in which he cross-examined the witness. It appears from the record that the trial judge did in several instances overstep the bounds of propriety, but I am loathe to characterize his action in this respect as misconduct. However, even though entirely inadvertent on his part, it would nevertheless entitle the defendant to a reversal if it operated to his substantial prejudice to an extent which deprived him of a fair trial, but I do not think that such was the case herein. An examination of the entire evidence in the case convinces me that the statements charged in the information here were false and that they were made by the defendant willfully and with a design to deceive the corporation commissioner. Under these circumstances I cannot concur in a reversal of the judgment.
Waste, J., concurred.